Dearman v. Bruns

• Court: North Carolina Court of Appeals
• Writing for the Court: CAMPBELL
• Citation: Dearman v. Bruns, 181 S.E.2d 809, 11 N.C.App. 564 (N.C. App. 1971)
• Decision Date: 23 June 1971
• Docket Number: No. 7122SC246,7122SC246
• Parties: C. H. DEARMAN, Executor of the Estate of Richard Shaw Brown v. Lula Rumple BRUNS, Widow, Individually and as Executrix of Minnie RumpleBrown, et al.

Page 809

181 S.E.2d 809

11 N.C.App. 564

C. H. DEARMAN, Executor of the Estate of Richard Shaw Brown v. Lula Rumple BRUNS, Widow, Individually and as Executrix of Minnie RumpleBrown, et al.

No. 7122SC246.

Court of Appeals of North Carolina.

June 23, 1971.

William P. Pope, Statesville, for plaintiff appellant.

Collier, Harris & Homesley by Richard M. Pearman, Jr., Statesville, for defendants appellants.

Sowers, Avery & Crosswhite by W. E. Crosswhite, Statesville, for defendants appellees.

CAMPBELL, Judge.

The sole question presented on this appeal is whether the terms of the Will of E. A. Rumple, deceased, created an estate by the entireties between Minnie Rumple Brown and her husband, Richard Shaw Brown, or whether the terms created a tenancy in common between Minnie Rumple Brown and Richard Shaw Brown.

It is well settled that the cardinal principle in the construction of a will is to give effect to the intent of the testator as it appears from the language used in the instrument itself. The intent is to be gathered from a consideration of the will from its four corners and such intent should be given effect insofar as that can be done within the limits of rules of law fixed by statute or by decisions of the Courts. Olive v. Biggs, 276 N.C. 445, 173 S.E.2d 301 (1970); McCain v. Womble, 265 N.C. 640, 144 S.E.2d 857 (1965).

Here, E. A. Rumple, deceased, devised the land in question '(t)o my daughter Minnie and Shaw Brown Forty (42) two acres including the (sic) my residence and out buildings. * * * My daughter Minnie and Shaw Brown is to bear all my expenses--such as doctor bills and funeral expenses and they are to share equally in the 42 acre tract above mentioned.' A conveyance of land to husband and wife, nothing else appearing, creates an estate by the entireties, with right of survivorship. Freeze v. Congleton, 276 N.C. 178, 171 S.E.2d 424 (1970). But here, the testator indicated dicated a desire that his daughter and her husband 'share equally' in the land.

A husband and wife do not 'share equally' in an estate by the entireties. The husband has the exclusive right during coverture to possession, control, and use of the land. He has the absolute right to income from such property, including rents and profits. North Carolina Board of Architecture v. Lee, 264 N.C. 602, 142 S.E.2d 643 (1965); Freeze v. Congleton, Supra. Execution against the husband can be levied on rents and profits to the exclusion of any claim of the wife. Lewis v. Pate, 212 N.C. 253, 193 S.E. 20 (1937). See also L. & M. Gas Co. v. Leggett, 273 N.C. 547, 161 S.E.2d 23 (1968). It is possible that a wife might receive not benefits at all from land held by the entireties if she predeceases her husband, for upon the death of one spouse, title to lands held by the entireties vests in the survivor, and no right, title, or interest of any kind passes to the estate of the deceased. Underwood v. Ward, 239 N.C. 513, 80 S.E.2d 267 (1954).

If a tenancy in common is created, the cotenants do 'share equally' in the land. The possession of one tenant in common is the possession of the other and each has a right to enter upon the land and enjoy it...